Taylor v Naera - [2019] NZHC 1862

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002463

[2019] NZHC 1862

IN THE MATTER of an application by Andrew Taylor for orders pursuant to s 145A Land Transfer Act 1952 in respect of caveat 11149439.1

BETWEEN

ANDREW TAYLOR

Plaintiff

AND

EVA NAERA

Defendant

Hearing: 24 June 2019

Appearances:

P Stevenson and S Carter for the Applicant Respondent in Person

Judgment:

2 August 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 2 August 2019 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

P Stevenson, Auckland
D M A Burgess, Auckland

TAYLOR v NAERA [2019] NZHC 1862 [2 August 2019]

[1] At issue is a caveat (caveat number 11149439.1) lodged by the applicant, Mr Andrew Taylor, over a property at 16 Ireland Street, Freemans Bay. The property is owned by the respondent, Mrs Eva Naera, who is Andrew’s sister.

[2] Andrew applies for an order pursuant to s 145A of the Land Transfer Act 1952 that the caveat not lapse. His application is opposed by Eva.

[3] There was a fixture allocated for earlier this year, but Eva failed to file submissions. The Court made an interim order that the caveat not lapse pending further order and allocated a further fixture for the application. The parties have had settlement discussions but to no avail.

[4]The central questions are twofold:

(a)The first is whether Andrew has an arguable caveatable interest in the property as beneficiary of an interest pursuant to a constructive trust. His claim is that he contributed indirectly to the property when it was owned by the parties’ mother and that he had a reasonable expectation of an interest in the property that equity must recognise.1 He contends that Eva was fixed with knowledge of the interest when she acquired her interest in the property from their mother and she must now yield to his interest.

(b)The second question is whether, even if the interest Andrew claims is arguable, the Court should use its discretion to order the lapse of the caveat.2 Eva (who is self-represented) deposes that she put the property on the market in February 2018 and entered into a binding agreement for sale and purchase in April 2018 before the caveat was lodged. She has been unable to settle the purchase and wishes to do so. The purchaser has not taken steps to remove the caveat and is waiting for her to take the necessary steps. She lodged a notice with the District

1 Relying on principles established in Lankow v Rose [1995] 1 NZLR 277 (CA).
2 See Botany Land Development Ltd v Auckland Council [2014] NZCA 61; (2014) 14 NZCPR 813 at [24].

Land Registrar for removal of the caveat and Andrew has responded with his application for an order that the caveat not lapse.

[5] For reasons that follow, I find that Andrew has made out a reasonably arguable case…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor v Naera

Details

AGLC: Taylor v Naera [2019] NZHC 1862
Case: [2019] NZHC 1862
Decision Date: 2 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Andrew Taylor, the applicant, sought orders pursuant to section 145A of the Land Transfer Act 1952 to prevent the lapse of a caveat lodged over a property at 16 Ireland Street, Freemans Bay, owned by the respondent, Eva Naera. The property was previously owned by their mother, Mrs Rihi Taylor, who relinquished part of her interest in the property to Eva in 1994. Andrew claimed that he contributed to the purchase of the property at 15 Spring Street in 1961 and subsequently to the properties at 19 Spring Street and 16 Ireland Street, and that he had a reasonable expectation of an interest in the property that equity must recognise. Eva opposed the application and argued that she had no knowledge of Andrew's claimed interest and had paid proper value for the property.

The legal issues before the court were whether Andrew had an arguable caveatable interest in the property as a beneficiary of an interest pursuant to a constructive trust and whether, even if the interest was arguable, the court should use its discretion to order the lapse of the caveat. The court found that Andrew had made out a reasonably arguable case for the interest he claimed, and that Eva arguably knew about this interest. However, the court also found that the caveat should lapse as it would not serve a useful purpose and alternative safeguards were available. The court ordered that Eva provide security by way of an undertaking to pay $120,000 of the net proceeds of sale into court, pending further order.

The court issued an interim judgment and listed the matter for review and further orders on 8 August 2019. Eva was to arrange for her newly instructed solicitor to appear, at which time the court would make further orders. Counsel for Andrew was also to appear. The court further ordered that Andrew file and serve proceedings by 16 August 2019 to establish his claimed interest, and that if he failed to do so, Eva had leave to seek further orders to lapse the caveat or to release any sum paid as security by way of memorandum on two days’ notice. The court reserved costs pending the further orders that would be made.

Orders